Features of Application of Article 392 of the Civil Code of Ukraine Upon Recognising the Right of Ownership of Newly Created Real Estate (A Case Study of Judicial Practice)

2020 ◽  
Vol 27 (2) ◽  
pp. 77-90
Author(s):  
Andrii Hryniak ◽  
Nadiia Milovska
Keyword(s):  
Real Estate ◽  
Property Rights ◽  
Legal Regulation ◽  
Civil Code ◽  
Practical Significance ◽  
Real Property ◽  
Real Right ◽  
Judicial Practice ◽  
Specific Object ◽  
The Right

The study of the specific features of recognition of ownership of newly created real estate is conditioned by its purpose, which is to determine the grounds for application of remedy upon recognising ownership of newly created construction object, stipulated by Article 392 of the Civil Code of Ukraine. The purpose of the study also includes identification of gaps and discrepancies in the legislation of Ukraine and judicial practice, which arise during application of the appropriate remedy for a substantive right, and the development of proposals for their elimination. In this regard, the main method of this study was comparative law, which allowed to identify and analyse different approaches to the legislative consolidation and application of such a remedy as the recognition of property rights. Upon concluding an agreement on sale and purchase of property rights to immovable property, the buyer receives a limited real right, under which it is endowed with certain, but not all rights of the property owner. Nevertheless, in recognising the ownership of newly created real estate, the study proves the feasibility of applying the method of protection stipulated in Article 392 of the Civil Code of Ukraine. It is substantiated that the buyer, who has performed its monetary obligations under the agreement on sale and purchase of real property rights, having fully paid the contractual value, is considered to have committed actions aimed at the occurrence of legal facts necessary and sufficient to obtain the legal claim for the transfer of ownership of the construction object. In this regard, it has been proved that the effectiveness of the remedy stipulated by Article 392 of the Civil Code of Ukraine, which is applied upon recognising the ownership of newly created immovable property, is aimed at levelling the possibility of further unlawful actions of third parties in relation to such property, and is achieved through the enforcement of judgement by recognition of ownership of a specific object, and in case of its destruction – by obtaining appropriate compensation. The practical significance of the study of the application of Article 392 of the Civil Code of Ukraine upon recognising the ownership of newly created real estate is that its results are designed to promote further research, to improve the legal regulation of relations, the object of which is newly created real estate, to optimise the implementation of property rights and law enforcement in this area

scholarly journals Problems of the definition and characteristics of the contractual basis for the limitation and encumbrance of ownership of real estate in Ukraine

2021 ◽  
pp. 341-348
Author(s):  
Inna Sevryukova
Keyword(s):  
Real Estate ◽  
Property Rights ◽  
Civil Law ◽  
Legal Regulation ◽  
Real Property ◽  
Legal Literature ◽  
Legal Nature ◽  
Characteristic Features ◽  
State Registration ◽  
The Right

Introduction. The legal description of the contractual grounds for restrictions and encumbrances on the right of ownership of real estate can be provided only after a comprehensive study of the common features of the contractual structures, which establish the relevant rights and obligations of the parties. The main common feature of such agreements is the emergence of appropriate property benefits for the owner, which is to enable the owner to satisfy their interests at the expense of someone else's real estate, resulting in restrictions and encumbrances on property subject to the contract. It should also be emphasized that each subjective right has its limits of exercise, including the subjective right of ownership, as well as other real property rights. Of course, the nature of such restrictions must be different and depend on the content and nature of the restricted right, its object and the grounds for the restrictions. That is, restrictions on property rights and other property rights cannot be the same. Restrictions on property rights are established in the interests of society and arise by law, as well as in the interests of individuals (on the basis of law, contract, court decision), and restrictions on other property rights are primarily due to protection of the property from which they originate and the legitimate interests of the owner. In our opinion, the category of real contracts should include those types of contracts relating to real estate, including contracts of encumbrance of property rights on the basis of which the rights subject to state registration arise. Purpose and objectives of the study The main common feature of such agreements is the emergence of appropriate property benefits for the owner, which is to enable the owner to satisfy their interests at the expense of someone else's real estate, resulting in restrictions and encumbrances on property subject to the contract. Therefore, we can argue for the existence of a certain generalizing type of contract, the features of which are inherent in all its subspecies, in particular, contracts for the establishment of easements, superficies, emphyteusis, mortgage agreement. Such an agreement in the legal literature is called by some authors as a real contract. However, issues concerning its legal nature, place in the system of civil law contracts remain debatable. Research methods. The research carried out in the article is based on the assessment of generally accepted approaches to defining the characteristic features of problematic issues of contractual grounds for the emergence of restrictions and encumbrances of property rights to real estate. It should be emphasized that these issues are controversial due to the lack of clear legislative regulation, which leads to imperfect legal regulation and violations of the rights of participants in property turnover. Research conclusions. As a result of the study, the idea is given that in the current legislation of Ukraine due to the lack of a clear concept of the relationship between the category of "encumbrance" and "restriction" of property rights, as well as the uncertainty of property rights, some questions remain about the classification of certain rights accordingly, about the types of material contract, this issue is debatable and needs further study. It is possible to make about polystructurality of the real contract that causes division of this type of the civil law contract into kinds and subspecies. In our opinion, such a division depends on the legal nature and scope of the relevant types of restrictions and encumbrances on the right of ownership of real estate, which are proposed by current civil law.

scholarly journals HISTORICAL EXPERIENCE OF INTELLECTUAL PROPERTY REGULATION IN GALICIA AS A PART OF AUSTRIA AND AUSTRO-HUNGARY (1772–1918)

2021 ◽  
Vol 77 (4) ◽  
pp. 23-29
Author(s):  
Ihor Boiko ◽  
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Legal Regulation ◽  
Civil Code ◽  
Industrial Property ◽  
Historical Experience ◽  
Definition Of ◽  
The Right ◽  
First Time ◽  
Right Of Reproduction

The article analyzes the features of the legal regulation of intellectual property in Ukraine, in particular in the Ukrainian lands of Austria and Austria-Hungary (1772-1918). The author shows that the main source of legal regulation of civil relations, in particular intellectual property, in Galicia as part of Austria and Austria-Hungary (1772–1918) was the Austrian Civil Code of 1811. Property rights under the Austrian Civil Code of 1811 were the right of ownership, the right of possession, the right to pledge, and easements. The author highlights that things were divided into corporeal, disembodied, movable and immovable, used and unused, with price and without price. The bodily things were those perceived by the sense organs. Disembodied things included, first of all, property rights - the right to fish, hunt, and so on. It is shown that in the Austrian Empire for the first time the provisions on the legal regulation of intellectual property were provided for in the Civil Code of 1811 (Articles 1164‒1170). The author shows that the Austrian legal acts of 1846 for the first time regulated the free use of works, including the right of translation, citation. According to the law of 1846, the artist had to reserve the right of reproduction and exercise it for 2 years under the threat of losing his rights. It is emphasized that the presence of Western Ukrainian lands in the Austro-Hungarian monarchy, in comparison with the previous period of the Commonwealth, contributed to the spiritual progress of the Ukrainian nation, intensified cultural and artistic processes in Ukrainian lands. The author reveals that an important and new normative act in the field of intellectual property regulation was the Austrian Copyright Act for works of literature, art and photography, adopted on December 26, 1895. Attention is focused on the fact that the development of industrial property rights was carried out under the influence of economic development, which in the western Ukrainian lands as part of Austria was slower than in the economically developed regions of Austria, and thus - Austria-Hungary. It is concluded that the development of legal regulation of intellectual property in Galicia as part of Austria and Austria-Hungary (1772-1918) formed a certain experience, which was characterized by the specification of objects, subjects, the definition of intellectual property, the consolidation of copyright and their defense in court.

scholarly journals A vagyoni értékű jogok apportálhatósága és az egységes szabályozás hiányának problematikája

2015 ◽  
Vol 12 (3-4) ◽  
pp. 114-120
Author(s):  
Zóra Zsófia Lehoczki
Keyword(s):  
Real Estate ◽  
Income Tax ◽  
Civil Code ◽  
Personal Income ◽  
The Other ◽  
Personal Income Tax ◽  
The Real Estate ◽  
Judicial Practice ◽  
Other Hand ◽  
The Right

According to the new Hungarian Civil Code, the funders of the legal entities have to make contributions to the authorised capital and the two forms of these contributions are the contribution is cash and the contribution in kind. The regulation states that proprietary rights can also be transferred to the capital of businness accociations, by those funders, who are entitled to demise them. The judicial practice unanimously defined the rules in those cases, when the object of contribution in kind is a certain proprietary right, especially when the right is connected to the real estate. On the other hand, the Civil Code does not contain a list of those proprietary rights, which can be transferred to the authorised capital and unfortunately, different acts contain different lists of these rights. The three mentioned acts are the following: the personal income tax act, the act about the fees and the accounting act. All of them contain a list of proprietary rights and some of the items are regulated by all the three of them but most of the items are different, which means it is impossible to create an accurate list of these rights. For example, the list in the personal income tax act contains only five items, on the other hand, the accounting act contains two lists and both of them are unfinised. Because of the lack of unified rules, it is impossible to define which proprietary rights can become the objects of contribution in kind and this misfortunate situation causes a lot of unwanted indefinability and states a lot of questions. In my essay I introduce this problem and I use a chart to illustrate the differences between the mentioned lists. In my opinion, this problem could be solved with an unified list, which is normative for every regulation in connection with the proprietary rights or the Civil Code should contain a list of those proprietary rights, which can be the objects of contribution in kind.

scholarly journals ON THE QUESTION OF PERSONAL NON-PROPERTY RIGHTS UNDER CONDITIONS OF QUARANTINE MEASURES TO PREVENT THE DISTRIBUTION OF COVID-19 ON THE TERRITORY OF UKRAINE

2020 ◽  
Vol 11 (87) ◽  
Author(s):  
Inna Horislavska ◽  
◽  
Anastasiia Androshchuk ◽  
Keyword(s):  
Property Rights ◽  
Legal Regulation ◽  
Fundamental Rights ◽  
Moral Rights ◽  
Freedom Of Movement ◽  
Judicial Practice ◽  
The Social ◽  
Legal Nature ◽  
Fundamental Rights And Freedoms ◽  
The Right

Now the world countries ran into the sharp problem of overcoming and counteraction to distribution in the whole world of COVID-19, and also application of responsibility for violation of quarantine. It is set on results research, that the personal unproperty rights for citizens were exposed to rather significant limitations, in fact normatively-legal acts in relation to responsibility for violation of quarantine and sanitary rules for prevention of COVID-19 have a row of legal contradictions. In the article on the basis of analysis of current national legislation, considerations of cases and theoretical and legal sources are investigated effective mechanisms of the legal providing of requirements of observance of sanitary rules and norms on prevention of infectious diseases in Ukraine. The problems of determination of legal nature, maintenance and realization of the personal unproperty rights open up in the conditions of introduction of quarantine events on warning of COVID-19. The article describes the concept of "the right to freedom of movement". This right was and is now more than ever one of the fundamental personal moral rights. The article examines the judicial practice of resolving cases in the context of the introduction of quarantine measures and ensuring the fundamental rights and freedoms of an individual through the introduction of technical means and risks that may arise in appropriate conditions. Proposals to eliminate the shortcomings of legal regulation in the studied area are substantiated. Human rights and freedoms, the degree of their recognition in the state and society, the level of their protection are determined by the type of its socio-economic organization, as well as the degree of social development and democratization of society. Personal non-property rights that ensure the social existence of an individual, including the right to freedom of movement, are closely related, both those that can be limited at the legislative level under certain conditions, and those that are not "subject to" such restrictions. Therefore, restrictions on the freedom of movement of an individual are possible only in cases provided by the Constitution and the Civil Code of Ukraine, other laws (but not by-laws, which are the rulings of the Cabinet of Ministers of Ukraine). And also in compliance with the principles of expediency, proportionality to goals. It is necessary to determine the participants in the emerging legal relationship, both those who "control" and those participants who are "controlled, limited".

Legal regulation of property rights to another's property abroad

2021 ◽  
pp. 147-153
Author(s):  
K. Pitsyk
Keyword(s):  
Law Enforcement ◽  
Civil Rights ◽  
Property Rights ◽  
Legal Regulation ◽  
Contract Law ◽  
Comprehensive Analysis ◽  
Practical Significance ◽  
Economic Activities ◽  
Real Right ◽  
Legal Remedy

Purpose. The purpose of the article is to analyze the grounds and procedures of the emergence of property rights to another's property abroad, to identify its interconnectedness and interdependence. Methodology. The methodology includes a comprehensive analysis and a synthesis of available scientific and theoretical information. It is includes the formulation of relevant conclusions and recommendations. Such methods of scientific knowledge were used: terminological, functional, systemic-structural, logical-normative. Results: In business and other economic activities there are situations in which there is a need to use someone else's things or property. This possibility is more often satisfied by means of contract law. However, in some cases, the contract is not a reliable legal remedy to meet the need to use someone else's thing. After all, the contract can be terminated at any time unilaterally and the user of someone else's thing is forced to terminate such use. Therefore, there was a need to invent a more reliable remedy that would ensure the continuous and unhindered use of someone else's property or even property. Such a means was the consolidation of the real right to use someone else's thing. Scientific novelty. In the process of research is established that common characteristics of the institution of limited property rights to another's property abroad is that the subjects of rights to another's property may be those persons who may be subjects of civil rights, first of all, any natural and legal persons. Practical significance. The results of the research can be used in legislation and law-enforcement activities.

scholarly journals Some issues of legal regulation of real estate mortgages that children have the right to use

2020 ◽  
pp. 31-36
Author(s):  
S.I. Denisenko ◽  
O.M. Rubanets
Keyword(s):  
Real Estate ◽  
Property Rights ◽  
Legal Regulation ◽  
Court Decisions ◽  
Residential Real Estate ◽  
The Real ◽  
The Real Estate ◽  
Rights Of The Child ◽  
Minor Children ◽  
The Right

The article deals with topical issues of mortgage agreements, according to which the mortgage is transferred to the mortgage, the right of use of which are underage children, and the study of problematic issues of further recourse to such housing. As a result of resorting to a comprehensive interpretation of individual regulations and court decisions, the degree of legal uncertainty that coexists with such terminological term as “Housing for children to enjoy” has been investigated. The article contains a study of the norms of the law that ensure the realization of the child's right to use the mortgaged property, which in particular concludes that the legislator has identified sufficiently specific restrictions on the rights of parents to dispose of real estate (housing) to which they are entitled to use to the child. It is also noted that the permission of the guardianship authority is required not only if the child is the co-owner of the real estate, but also if there is only registration of the child in the accommodation. Attention is drawn to the fact that the very fact of registration of a child in residential real estate (when the child is not even a co-owner) already speaks of the need for obtaining the permission of the guardianship authority. After all, such actions (deeds) of parents, which by their essence limit the property rights of the child, can in no case be carried out without the permission of the guardianship and guardianship bodies. But if the guardianship authority has been granted permission to enter into a mortgage agreement, which provides for the mortgagee's right to satisfy his claims by selling the mortgage / acquisition of title to it, it means that such authority simultaneously consented to and alienate such property upon the occurrence of the property provided for in such transaction. According to the results of the study, deficiencies in the legislative regulation of the above issues were identified and the risks of violating a child's right to use mortgaged housing were identified. This made it possible to provide guidance on the practical avoidance of situations where a mortgage agreement was invalidated due to a violation of children's rights. At the same time, Ukrainian legislation, some scientific works of scientists were analyzed, which made it possible to speak about insufficient level of attention of scientists to such problems as protection of the rights of the borrower (mortgagee) and members of his family - minor children and, at the same time, introduction of responsibility of parents in the sphere. violation of the rights of the child.

scholarly journals Legal regulation of advertising agencies in the context of intellectual property law

2021 ◽  
pp. 5-10
Author(s):  
Nadiia Fedorova
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Legal Regulation ◽  
Practical Aspect ◽  
Advertising Agencies ◽  
Advertising Agency ◽  
Professional Business ◽  
The Creation ◽  
Business Entities ◽  
The Right

Keywords: advertising, legal regulation, subjects of advertising activity, consumerrights, advertising legislation, hidden advertising, comparative advertising The main prerequisite for the rationalization of advertisingactivities in all its scale is the methodological and planned preparation of advertisingmessages and their correct use at all stages of the advertising process. Advertisingagencies play an important role in being qualified coordinators between trade(distribution) and marketing, for the benefit of consumers.The specificity of legal relations arising in connection with the creation and distributionof advertising is associated with the fact that their subjects on the part ofadvertising producers are mainly professional business entities, which concludeagreements on the creation of advertising with their customers. Relationships betweenadvertising creators and advertising agencies are mainly built based onorder agreements for the creation and use of objects of intellectual property rightsor labour contracts. In this case, the author retains non-property intellectual propertyrights, while property rights in most cases pass to the advertising agency oradvertising customer.So, the author retains non-property rights, and, unfortunately, they, as a rule, areunimplemented properly in relations arising from the creation and distribution of advertising.Undoubtedly, we are talking about the right to a name. As a rule, advertisementsdon’t include their creators' name, regardless of how they are distributed.However, this doesn’t mean that the rights of the advertising author. or the rights ofthe advertisement constituent elements author may be violated. The legislation notesthe possibility not to indicate the name of the author with his consent or at his request.According to Law of Ukraine “Copyright and Related Rights”, the author has apersonal non-property right to demand recognition of his authorship by properly indicatingthe author's name on the work and its copies of any public use of the work, certainly,if it’s possible. However, the purpose of advertising is to disseminate informationabout a product or service and not about its author. For the practical aspect ofthis situation, it’s usually indicated that the producer is an advertising agency, notthe individual authors of the content.

Renewal of the Land Lease Agreement: Problems of Theory and Judicial Practice

2020 ◽  
Vol 27 (3) ◽  
pp. 48-62
Author(s):  
Vitalii Urkevych
Keyword(s):  
Legal Regulation ◽  
Practical Significance ◽  
Structural Method ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Subject ◽  
The Law ◽  
Important Object ◽  
And Performance ◽  
Lease Agreement

Land is the most important object of the environment. It is an indispensable means of production in agriculture, the territorial basis for the location of various objects. It is argued that the proper functioning of land lease relations is a guarantee of sustainable economic circulation, a guarantee of the exercise of rights and performance of duties by both the lessor and the lessee of the land. The issue of renewal of the land lease agreement after its expiration is debatable. The purpose of the study is to outline the existing theoretical and law enforcement problems regarding the renewal of the land lease agreement, to make proposals to eliminate the latter. To achieve this purpose, a system-structural method of scientific knowledge was used, which helped analyse the prescriptions of the legislation on renewal of the land lease agreement, their relations and interaction were highlighted. The study proves that the lessee's pre-emptive right exists to renew the land lease agreement only for the same period and on the same terms and in the absence of objections to such renewal by the lessor. If the lessee tries to change the essential terms of the land lease agreement and in the absence of the lessor's consent to such changes, the lessee's pre-emptive right to enter into a land lease agreement for a new term is terminated. It is emphasised that in each dispute it is necessary to establish the good faith of the lessor’s actions to refuse to renew the land lease agreement with one person (lessee) and the subsequent conclusion of the agreement with the new lessee. The use of the category of "less protected" party in land lease legal relations appears debatable, because depending on the subject composition of the parties to these legal relations, such a party can be both a lessee and a lessor. It is concluded that the Supreme Court should unify the practice of applying the provisions of the law on the renewal of the land lease agreement (only in combination with other regulations or autonomously, with the use of the principle of "tacit consent"). The possibility of autonomous application of such instructions is indicated by the provisions of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Concerning Counteraction to Raiding”. The revealed shortcomings of the legal regulation of the renewal of the land lease agreement after its expiration indicate the directions of improvement of the legislation in land lease, which has practical significance

Land withdrawal for state and municipal needs

2020 ◽  
pp. 46-50
Author(s):  
M. N. Gavrilyuck
Keyword(s):  
Real Estate ◽  
Territorial Planning ◽  
Judicial Practice ◽  
The Right

The topical issues of land plots withdrawal for state and municipal needs are considered in this paper. Judicial practice on this issue is analyzed, as well as the problems of searching for the right holders of the seized real estate. In addition, the article discusses the "guarantees" of compliance with the principle of withdrawal impossibility if the placement of real estate objects is not provided for by documents of territorial planning.

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